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American Trucking and Transportation Insurance Company v. Allied Tube & Conduit Corporation

November 23, 2011

AMERICAN TRUCKING AND TRANSPORTATION INSURANCE COMPANY, PLAINTIFF,
v.
ALLIED TUBE & CONDUIT CORPORATION, AND TERRY MORRIS, DEFENDANTS.



The opinion of the court was delivered by: Judge George M. Marovich

MEMORANDUM OPINION AND ORDER

After defendant Terry Morris ("Morris") filed a state-court tort action against defendant Allied Tube & Conduit Corporation ("Allied"), Allied tendered its defense to plaintiff American Trucking and Transportation Insurance Company ("ATTIC"). ATTIC has filed this suit seeking a declaratory judgment that it has no duty to defend Allied.*fn1 Allied and ATTIC have filed cross motions for judgment on the pleadings. For the reasons set forth below, the Court grants ATTIC's motion and denies Allied's motion.

I. Background

The following summary is based upon: (1) the facts alleged by plaintiff and admitted by defendant in the pleadings; and (2) the attachments to the pleadings. The parties agree on the facts.

In the underlying suit, plaintiff Morris alleges that he was injured picking up a load of steel tubing from Allied in January 2007. At the time, Morris was employed by System Transport, Inc. ("System Transport") as a truck driver. On the day he was injured, Morris drove a truck owned by System Transport to Allied to pick up the steel tubing. The steel tubing was exposed to the elements and had oil and ice on it. After the steel tubing was loaded onto his truck, Morris attempted to put a tarp over the load. While doing so, Morris slipped, fell and severely injured his lower spine. In his complaint, Morris alleged that Allied "committed one or more" of the following acts of negligence:

a. Failed to have safe procedures in place for use in the loading and/or securing of their steel tubing onto trucks;

b. Failed to have proper equipment accessible for use by truck drivers, including Plaintiff TERRY MORRIS, in the loading and/or securing of their steel tubing for transport; and/or

c. Due to a lack of proper equipment, ALLIED forced truck divers [sic], such as TERRY MORRIS to climb on top of their steel tubing in an area exposed to the elements for the purpose of tarping their loads.

(Morris Complaint at 3). Morris is suing Allied for Allied's alleged negligence, not for System Transport's negligence.

At the time of Morris's injury, Allied was a subsidiary of Tyco International Ltd. ("Tyco"). Tyco had entered into a contract (which covered Allied, as Tyco's subsidiary) with System Transport to transport goods. Under that contract, System Transport was required to purchase "Comprehensive Auto Liability insurance" and "Comprehensive General Liability Insurance." The contract also required System Transport to name Tyco and its subsidiaries as "a named Additional Insured and Certificate Holder." System Transport procured a policy (policy ATTSTJ106) from plaintiff ATTIC (the "ATTIC Policy") for the relevant time period.

The ATTIC Policy was effective October 1, 2006 to October 1, 2007. The ATTIC Policy listed as "Named Insured(s)" the following: Trans-System, Inc., System Transport, Inc., T.W. Transport, Inc., Bulk Service Transport, Inc., Trans-System Logistics, LLC, and Driver Training & Solutions, LLC, Northwest Truck Leasing, LLC, Wil-Hunt Limited Partnership, Four-Way Leasing Company, LLC, Fleetway Leasing Company, LLC, TSI Investors, LLC, and Wil-Hal Limited Partnership. (ATTIC Policy at 2). In its "DEFINITIONS" section, the ATTIC Policy defined "Insured" as "(1) the Named Insured(s) for any Covered Trucking Unit; (2) the employees or agents of the Named Insured(s) while using or maintaining any Covered Trucking Unit under the authority of the Named Insured(s); and (3) anyone else while using with the Named Insured's permission any Covered Trucking Unit." (ATTIC Policy at 11).

ATTIC also issued an Additional Insured Endorsement for the ATTIC Policy. The endorsement names as Additional Insureds: "Tyco International (US) Inc. And Its Subsidiary and Affiliated Companies." The parties agree that Allied, as a Tyco subsidiary, is an Additional Named Insured. The Additional Insured Endorsement states:

The above named Additional Insured(s) are included as insureds to the extent of the terms, conditions and exclusions of the applicable policy issued by ATTIC, RRG to the Named Insured and only to the extent the Additional Insured(s) are liable to others (and only to the extent of the actual liability) for the conduct of an insured under the applicable policy. The additional insured status of the above named Additional Insured(s) ceases when the Additional ...


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